Dux v. United States
| Decision Date | 24 September 2014 |
| Docket Number | Case No. 11 CV 7142 |
| Citation | 69 F.Supp.3d 781 |
| Parties | Shannon Dux, Special Administrator of the Estate of John Dux, deceased, Plaintiff, v. United States of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Jon C. Papin, Michael Paul Cogan, Cogan & Power, P.C., Chicago, IL, for Plaintiff.
Jonathan C. Haile, AUSA United States Attorney's Office, Chicago, IL, for Defendant.
In December 2009, doctors at the Edward Hines, Jr. Veterans Administration in Maywood, Illinois, told John Dux that tissue from Dux's prostate tested positive for cancer
. On the advice of his doctors, Dux underwent a surgical procedure known as a radical prostatectomy. During the months following the surgery, Dux suffered from incontinence, sexual dysfunction, and depression. In February 2010, the VA doctors told Dux that they were wrong—they had mistakenly switched the tissue from Dux's biopsy with that of another patient, and in fact, Dux's biopsy was negative. Nevertheless, the side-effects of Dux's surgery persisted, his depression worsened, and on September 24, 2010, Dux committed suicide by shooting himself in the head.
Plaintiff Shannon Dux now brings this suit on behalf of her father's estate against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 –80. Count I is a survival action seeking damages for the pain and suffering John Dux experienced while he was alive. Count II is a wrongful death action seeking damages to compensate Shannon Dux for the loss of her father.
Three issues are presently before the court. First, plaintiff moves for partial summary judgment on the issue of whether the government breached the standard of care in misdiagnosing Dux and advising him to undergo an unnecessary procedure. Second, both parties move for partial summary judgment on the issue of whether the government's breach proximately caused Dux's death. Third, plaintiff moves to exclude the testimony of one of the government's expert witnesses, Dr. Kevin McVary. For the reasons explained below, plaintiff's motion for partial summary judgment on the issue of breach is granted. The government's motion for partial summary judgment on the issue of proximate cause is granted, and plaintiff's motion is denied. Finally, plaintiff's motion to exclude Dr. McVary is denied.
John Dux was a military veteran who served in the Vietnam War. It is undisputed that Dux suffered from severe mental health problems throughout his life. Plaintiff's expert, a psychiatrist named Dr. Eric Caine, described Dux as “a guy who was damaged early,” having been sexually abused as a child and having suffered from post-traumatic stress disorder
after serving in Vietnam. (Caine Dep. 43:23–25, ECF No. 35–8.) Dr. Caine noted that Dux suffered from “major depressive episodes, ... intermittent heavy alcohol use, hypertension, hyperlipidemia, diabetes, and coronary artery disease.” (Caine Report at 1, ECF No. 35–13.) At the VA, Dux had reported “recurring suicidal ideas and plans, insomnia, angry episodes, and recurring troubles with interpersonal relationships....” (Id. )
Before 2010, Dux had considered suicide a number of times. When Dux was in his thirties, Dux's wife interrupted him while he was “trying to connect a hose to a car.” (Caine Dep. 54:4–7.) In his forties, Dux considered shooting himself with a firearm. (Id. at 54:8–12.) He considered suicide again in 2007 after a breakup with his then girlfriend. As Dr. Caine put it, “We certainly know that he had repeated suicidal thinking.” (Id. at 54:21–22.)
Although Dr. Caine testified that “it's very evident that suicidal thinking [was] part of his psychological repertoire” and that Dux “maintained suicide as an option for his end,” Dr. Caine also testified that from 2006 to 2009, Dux “never really moved into the point of threat.” (Id. at 55:11.) Before his cancer diagnosis
in December 2009, Dux was, according to Dr. Caine, “stably unstable.” (Caine Report at 3.) He “maintained pleasurable activities and valued relationships, and a sense of himself as a valued service volunteer, which together provided protective and sustaining factors—that is, reasons for living.” (Id. ) Dr. Caine described Dux as a man who, based on the descriptions of his girlfriend, “could be smiling, always having, as she called it, a big grin, who she called cuddly, who was a VA volunteer and was active in the VFW, and could really be pretty socially interactive.” (Caine Dep. 41:13–19.)
On July 14, 2009, Dux presented at the VA with elevated “prostate-specific antigen levels (PSA),” a sign that he may have had prostate cancer
. Due to the elevated PSA levels, Dux underwent a biopsy performed by doctors at the VA in December 2009. At some point, VA doctors mistakenly switched the tissue from Dux's biopsy with the tissue from another patient's biopsy. Based on the switched result, the VA advised Dux that he had prostate cancer
.
On the advice of his doctors, on February 9, 2010, Dux underwent a surgical procedure known as a radical prostatectomy
, which involves removing a part of the prostate. Incontinence is a common side effect of a radical prostatectomy, and Dux experienced incontinence following his surgery. For several months, Dux was required to wear diapers, which, in Dr. Caine's opinion, was debilitating and caused Dux to become a “hermit rather than the upbeat man who often was present at the VFW.” (Caine Report at 3.) Dux would occasionally try to stop wearing diapers but had accidents when he did so, leaving him vulnerable to embarrassment. (Caine Dep. 61:4–6.)
Dux also suffered from sexual dysfunction following the surgery and was “no longer able to engage in a sexual relationship with his girlfriend.” (Caine Dep. 121:6–9.) Dr. Caine summarized Dux's situation as follows: “Incontinent and no longer able to engage a sexual relationship with his girlfriend, Mr. Dux perceived that he had lost his manhood and saw no likelihood of recovery.” (Caine Report at 3.) Dr. Caine believed that the situation was exacerbated by Dux's “loss of trust in his clinicians and in the VA.” (Id. )
Sometime around mid-August, Dux was at a bar with his friend, Larry Oldfield, and said to Oldfield, “What am I going to do, I can't stand this, I'm wearing diapers, I'm a grown man, I'm 62, what can I do, I can't even perform with my girlfriend....” (Oldfield Dep. 29:18–21, ECF No. 38–7.) He told Oldfield that “the night before he had put a gun in his mouth and didn't have the guts to pull the trigger.” (Id. at 19:1–3.) Around this same time, doctors at the VA were also growing concerned about Dux and the fact that he kept firearms in his home. (Caine Dep. 65:22–24.)
At approximately 8:30 p.m. on September 24, 2010, Dux called Oldfield and told him that he was “in trouble.” A car had cut Dux off earlier that night as he was leaving the VFW. Dux followed the car. When the car stopped at a light, Dux left his car and punched the other driver in the face. Dux told Oldfield that he was worried about being arrested for having assaulted the other driver. Later that night, Dux committed suicide by shooting himself in the head.
Summary judgment is appropriate when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 ; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.2009). “[A] factual dispute is ‘genuine’ only if a reasonable jury could find for either party.” SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.2009). The court ruling on the motion construes all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.2012).
The Federal Tort Claims Act provides a remedy for personal injury caused by the negligent or wrongful act or omission of government employees while acting within the scope of their employment. See28 U.S.C. §§ 1346(b), 2674. The Act incorporates the law of the place where the act or omission occurred, which in this case is Illinois. 28 U.S.C. § 1346(b).
Under Illinois law, “[t]o recover damages based upon a defendant's alleged negligence, a plaintiff must allege and prove that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries.” First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 242 Ill.Dec. 113, 720 N.E.2d 1068, 1071 (1999). The elements at issue in the parties' respective motions for summary judgment are breach and proximate cause.
Dux moves for summary judgment on the issue of whether the government breached its duty to Dux by misdiagnosing him. Physicians have a duty “to exercise the same degree of knowledge, skill, and care which a reasonably well qualified physician in the same or similar community would use under similar circumstances.” Jinkins v. Lee, 209 Ill.2d 320, 282 Ill.Dec. 787, 807 N.E.2d 411, 421 (2004). Although the question of breach is normally a question of fact for the jury, Lee v. Chi. Transit Auth., 152 Ill.2d 432, 178 Ill.Dec. 699, 605 N.E.2d 493, 502 (1992), the court may grant summary judgment for the plaintiff if the breach is obvious from the undisputed facts. Gipson v. United States, 631 F.3d 448, 452 (7th Cir.2011) (...
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